Chapter 14.25

PARK IMPACT REQUIREMENTS

Parts:

• 1 Definitions

• 2 Purpose

• 3 Park Impact Requirement

• 4 Credit Requirements

• 5 Exemptions

• 6 Residential Care Facilities for the Elderly

Part 1

DEFINITIONS*

Sections:

• 14.25.010 Affordability restrictions.

• 14.25.012 Affordable housing unit.

• 14.25.015 Applicant.

• 14.25.025 Community park.

The provisions of Chapter 14.20 of the San José Municipal Code shall apply to all proceedings under this Chapter 14.24, and are hereby referred to and incorporated by this reference in this Chapter

• 14.25.030 Director.

*Editor’s note— Ord. 27949, § 1, adopted January 9, 2007, amended Parts, 1, 2, 3, 4 and 5 of Chapter 14.25 to read as herein set out.

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§ 14.25.005

• 14.25.040 Low income unit.

• 14.25.045 Lower income households.

• 14.25.048 Moderate income unit.

• 14.25.050 Neighborhood park.

• 14.25.055 Park facilities.

• 14.25.060 Park impact fee.

• 14.25.065 Parkland agreement.

set to restrict monthly gross housing costs to not exceed not more than thirty percent (30%) of gross household income. (Ord. 30541.)

"Applicant" shall mean an applicant for a building permit for one (1) or more residential units subject to this chapter. (Ord. 27949.)

• 14.25.070 Public agency.

• 14.25.075 Public agency property.

• 14.25.080 Recreational facilities.

• 14.25.085 Regional park.

• 14.25.090 Residential care facility for the elderly.

• 14.25.095 Schedule of fees and credits.

• 14.25.100 Stormwater detention facility.

• 14.25.105 Trail.

The definitions set forth in this part shall govern the application and interpretation of this chapter.

(Ord. 27949.)

"Affordability Restrictions" shall mean covenants, conditions and restrictions running with the land and recorded in the Office of the Santa Clara County Recorder in connection with a residential unit to be utilized by Lower or Moderate Income Households within the City. The Affordability Restrictions shall require that the residential unit be utilized by Low or Moderate Income Households for a minimum period as may be required by local, state or federal law.

(Ords. 27949 and 30541.)

"Affordable Housing Unit" is defined as residential units that have an Affordability Restriction

"Community park" shall mean a city park serving the community that may include more specialized or unique facilities that are not typically provided in a neighborhood park to serve the diverse needs of the community such as: lighted sports fields, community gardens, swimming pools, dog parks, skate parks and community centers. (Ord. 27949.)

"Director" shall mean the director of parks, recreation and neighborhood services or such other director designated by the city manager to administer this chapter.

(Ord. 27949.)

"Gross Household Income" means the sum of income available to a family at the time of application. Gross Family Income shall be based on all income or compensation earned or received in the last four consecutive weeks. Gross Household Income shall not include: Supplemental Security Income (SSI), income from trusts fully funded by SSI payments, Temporary Assistance to Needy Families (TANF), or any other governmental assistance. Generally, Gross Family Income shall include, but not be limited to, the following: (a) Wages and salary; (b) Child support; (c) Alimony; (d) Unemployment compensation; (e) Worker's compensation; (f) Retirement Income; (g) Veteran's pension; (h) Social Security; (i) Pensions and annuities; (j) Dividends and interest on savings, stocks, and bonds;

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(k) Income from estates and trusts; (l) Net rental income or royalties; (m) Net income from self employment; and (n) Other forms of compensation or financial contributions.

are discontinued, the council shall, by resolution, establish eligibility standards for low income households.

(Ord. 27949.)

(Ord. 30541.)

"Joint use agreement" shall mean a written agreement between the city and a public agency that provides for the development or renovation of park facilities and/or recreational facilities on the public agency property and that shall at a minimum include:

• A. The specific times, days, hours, responsibilities and types of use of the public agency property by the city and the public agency; and

• B. A provision ensuring that the dollar amount invested by the city will be commensurate with the hours of city use; and

• C. A provision that the term of the joint use agreement shall be commensurate with the useful life of the proposed park facilities and/or recreational facilities.

(Ord. 27949.)

"Moderate Income Unit" shall mean a residential unit subject to an Affordability Restriction in compliance with and pursuant to a recorded Affordable Housing Agreement required by Chapter 5.08 of the San José Municipal Code that limits occupancy to households that earn between 80% - 120% of the Area Median Income or as established and amended from time to time pursuant to Health and Safety Code Section 50079.5 as amended. In the event such standards are discontinued, the Council shall, by resolution, establish eligibility standards for Lower Income Households.

(Ord. 30541)

"Neighborhood park" shall mean a city park that serves a neighborhood and includes amenities such as play fields, hard courts, tot lots, picnic areas and open turf or natural areas. (Ord. 27949.)

"Low Income Unit" shall mean a residential unit subject to an Affordability Restriction that limits occupancy to households that earn between 0% - 80% of the Area Median Income or as established and amended from time to time pursuant to Health and Safety Code Section 50079.5 as amended. In the event such standards are discontinued, the Council shall, by resolution, establish eligibility standards for Lower Income Households. (Ords. 27949 and 30541.)

"Park facilities" shall mean community parks, neighborhood parks, and the neighborhood and community-serving elements of regional parks. (Ord. 27949.)

"Park impact fee" shall mean the fee established by the city council pursuant to this chapter. (Ord. 27949.)

"Lower income households" shall mean persons and families whose incomes do not exceed the qualifying limits for lower income households as established and amended from time to time pursuant to California Health and Safety Code Section 50079.5 as amended. In the event such standards

"Parkland agreement" shall mean a written agreement between the city and the applicant to satisfy the applicant's obligations under this chapter.

(Ord. 27949.)

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§ 14.25.070

"Public agency" shall mean a public utility or any government agency. (Ord. 27949.)

"Schedule of fees and credits" shall mean the resolution of the city council setting forth the schedule of park impact fees and credits applicable to residential units subject to this chapter. (Ord. 27949.)

"Public agency property" shall mean real property which the public agency owns in fee simple or the public agency owns an easement over the real property.

(Ord. 27949.)

"Recreational facilities" shall mean recreational improvements that are not typically provided in either a neighborhood park or a community park such as trails or community gardens. Recreational facilities shall also mean recreational improvements, such as community centers or sports fields, that are not located in either a neighborhood park or a community park. (Ord. 27949.)

"Stormwater detention facility" shall mean a facility designed to manage peak stormwater runoff flow, volume and duration, and/or a treatment control device designed to reduce stormwater pollutant loading from a developed site or a portion of a developed site.

(Ord. 27949.)

"Trail" shall mean a linear corridor which provides a completely separated right-of way with crossflows by motorists minimized and which is designated for recreational purposes such as walking, running, horseback riding, bicycling, or in line skating.

(Ord. 27949.)

Part 2

"Regional park" shall mean a city park that has unique features that attracts visitors from throughout the city, that protects and interprets the city's natural and cultural resources or that provides specialized outdoor recreational facilities, such as festival sites, that are not typically duplicated in other parks in the city. (Ord. 27949.)

"Residential care facility for the elderly" shall mean a residential development licensed to provide care to the elderly pursuant to California Health and Safety Code Section 1569.10 and Chapter 8 of Division 6 of Title 22 of the California Code of Regulations, as may be amended from time to time. (Ord. 27949.)

PURPOSE*

Sections:

• A. This chapter is enacted pursuant to the Charter of the City of San José and establishes park impact requirements to parallel the parkland dedication and in-lieu fee requirements of Chapter 19.38 of this Code for residential units that are not subject to that chapter.

• B. Requiring dedication of land, or payment of a park impact fee, or both, by residential builders for the purpose of developing, including acquisition of, or renovating park facilities and recreational facilities is in accordance with

  • *Editor’s note— See the editor's note at Part 1.

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the provisions of the General Plan of the City of San José, and advances the parks and recreation goals and policies of the general plan.

• C. Nothing in this chapter shall restrict the ability of the city to require dedication of land, payment of fees or construction of improvements for needs other than, or in addition to, park facilities and recreational facilities.

• (Ord. 27949.)

Part 3

PARK IMPACT REQUIREMENT*

Sections:

• 14.25.320 Determination of land dedication or payment of the park impact fee.

• 14.25.330 Land dedication procedure.

• 14.25.340 Sale of dedicated land.

• 14.25.350 Use of park impact fees.

• 14.25.360 Appeal of timing of payment for park impact fee.

• 14.25.370 Agreement required for delayed payment of park impact fees.

• 14.25.380 Accounting of park impact fees.

• A. It is in the public interest, convenience, health, welfare and safety that at least three (3) acres of real property for each one thousand (1,000) persons residing within this city be devoted to park facilities.

• B. The park impact requirements of this chapter shall be based on the value of real property in the City of San José and shall be calculated in the same manner as the dedication requirements are calculated under Chapter 19.38 of this Code. The schedule of fees and credits

  • *Editor’s note— See the editor's note at Part 1.

under this chapter shall be the same schedule as the schedule of fees and credits established by resolution of the city council pursuant to Chapter 19.38 of this Code.

• (Ord. 27949.)

• A. The requirements of this chapter shall apply to the construction of new residential units that are not subject to the requirements of Chapter 19.38 of this Code.

• B. Every applicant shall dedicate land, pay a park impact fee in lieu of dedication, or both, for park or recreational purposes in conformity with the conditions, provisions, standards and formulas contained in this chapter except as otherwise provided in this chapter or in the schedule of fees and credits. Alternatively, an applicant may satisfy the requirements of this chapter by entering into a parkland agreement for the construction of park facilities, recreational facilities or both pursuant to Section 14.25.410.

• C. Except as otherwise provided in this chapter or in the schedule of fees and credits, no building permit for a residential unit subject to this chapter shall be issued unless and until the park impact fee has been paid or, alternatively, the applicant has provided evidence of either compliance with or exemption from the provisions of this chapter.

• D. Failure to pay the park impact fee within the time specified under this chapter shall result in the imposition of additional charges as set forth in the schedule of fees and credits as well as loss of any credits previously granted pursuant to this chapter.

• (Ord. 27949.)

• A. The planned development zoning or development permit for the residential project subject to this chapter, whichever occurs first, shall set forth whether the city will accept land dedica-

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tion or require payment of a fee in lieu thereof, or a combination of both. The determination shall be based upon, but not limited to, consideration of the following:

1. The General Plan of the City of San José;

2. The city's policies for the development or renovation of park facilities and recreational facilities;

3. The topography, geology, access, and location of land in the residential project that is suitable for the development or renovation of park facilities or recreational facilities;

4. The size and shape of the residential project and land available for dedication;

5. The location of existing or proposed park sites and trails.

• B. Land to be dedicated shall not be of such size, shape or location as to make the development of the residential project unfeasible, and shall permit the balance of the residential project to be developed in an orderly and efficient manner. The feasibility of all dedications shall be determined pursuant to this section. Additionally, land to be dedicated must meet the following criteria:

  1. Be at least one-half (1/2) acre in size, excluding hillsides over a ten (10) percent grade, riparian set back areas and environmental mitigation areas. The director may accept dedications of land less than one-half (1/2) acre if the land to be dedicated is located adjacent to an existing or planned park facility or recreational facility; and

  2. Can be graded to create a sufficiently flat area of less than three (3) percent grade in any direction; and

  3. Be located adjacent to a public street in order to promote public safety and facilitate policing.

• C. The applicant, as required by the city, in addition to the land dedicated pursuant to Subsection A., shall:

  1. Provide reasonable improvements and access to the land dedicated including, but

not limited to, full street improvements and utility connections, such as curbs, gutters, street paving, traffic control devices, street trees, and sidewalks, to land which is dedicated pursuant to this chapter;

2. Provide for fencing along the property line of that portion of the project contiguous to the dedicated land; and

3. Provide improved drainage through the site.

• D. The director shall consult with the director of public works and the director of planning, building and code enforcement in making the determination whether to require the dedication of land.

• E. Prior to making a determination to require land dedication pursuant to Subsection A. above, the director may consult with the applicant as to the desirability of requiring dedication rather than fees, as well as to the nature of any such dedication.

• F. Notwithstanding Subsection A. above, if the proposed project contains fifty (50) or fewer parcels and is not a condominium project, stock cooperative or community apartment project as such terms are defined in California Civil Code Section 1351, as amended, the applicant shall be allowed to pay park impact fees as determined in accordance with Section 14.25.300.

• G. If a phased project results in a total residential project of more than fifty (50) units, the land dedication which could not have been otherwise required pursuant to Subsection F., may be required.

• (Ord. 27949.)

• A. Real property dedicated to the city shall be conveyed by grant deed, free and clear of encumbrances. Deeds, in a form acceptable to the director of public works, shall be given to the director of public works prior to, or concurrent with, the issuance of the first building

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permit, unless the parkland agreement specifies a different procedure for transmittal of the grant deed.

• B. The applicant shall provide all instruments required to convey the land and shall also provide a preliminary title report and title insurance in favor of the city in an amount equal to the value of the property being conveyed as estimated by the city.

• (Ord. 27949.)

If during the time between dedication of land for park purposes and commencement of development, circumstances arise which indicate that another site would be more suitable for local park or recreational purposes serving the residential project, the land may be sold upon the approval of the city council with the proceeds being deposited in the park trust fund and used as provided in Section 14.25.350.

(Ord. 27949.)

• A. Subject to the requirements of Subsection B., below, the park impact fees collected pursuant to this chapter shall be used for the development, including acquisition of, or renovation of:

  1. Park facilities, or

  2. Recreational facilities; or

  3. Park facilities or recreational facilities on public agency property pursuant to a joint use agreement.

• B. The facilities developed or renovated with park impact fees must serve or benefit the residential project that paid such park impact fees.

• (Ord. 27949.)

• A. An applicant may, prior to the issuance of the applicant's building permit, seek to delay payment of the park impact fee until the date of

the final inspection of the applicant's residential project by filing a written appeal with the director.

• B. The exclusive grounds for granting an applicant's appeal to delay payment of park impact fees shall be as follows:

  1. The city's five-year capital improvement plan does not include a park facilities project or a recreational facilities project which would serve or benefit the applicant's proposed residential project; or

  2. The city has not appropriated or expended funds for a park facilities project or a recreational facilities project which would serve or benefit the proposed residential project.

• C. Within ten (10) business days of receipt of the applicant's request for delay of payment, the director shall issue a written response to either uphold or deny the applicant's request for delayed payment of the park impact fees for the applicant's project. The decision of the director shall be final.

• D. An appeal of the timing of the park impact fee submitted after payment of the park impact fee shall be deemed untimely and shall not be considered.

• (Ord. 27949.)

• A. In the event that the director determines to uphold the applicant's request for delay of payment, the city and the applicant shall enter into an agreement for the delayed payment of the park impact fees as a condition of issuance of the applicant's building permit(s).

• B. The delayed payment agreement shall be recorded in the Office of the Santa Clara County Recorder and shall require the applicant or the applicant's successor to pay the park impact fees for the applicant's project, in full, no later than the date on which final inspection of the first unit within applicant's project occurs. Failure to pay the park impact fee, when due, shall

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result in the imposition of additional charges as set forth in the schedule of fees and credits.

Part 4

CREDIT REQUIREMENTS*

• C. The delayed payment agreement shall have attached as an exhibit a legal description of the real property on which the applicant's project is to be built. The applicant shall be responsible for providing the legal description to the city at the applicant's sole cost.

• (Ord. 27949.)

• A. Park impact fees shall be deposited into the park trust fund. Money in the park trust fund, including accrued interest, shall be expended solely for the uses specified in Sections 14.25.350 and 19.38.345. The director of finance shall report to the city council at least annually on income, expenditures and status of the park trust fund.

• B. Park impact fees collected pursuant to this chapter shall be committed by the city in a budgetary year within five (5) years of receipt of payment for a specific project to serve or benefit residents of the project for which the fees were collected.

• C. If park impact fees are not committed as specified in Subsection B., these fees shall be distributed and paid to the current record owners of the lots or units of the residential project or projects for which the fees were charged on a prorated basis.

• D. If the administrative costs of refunding uncommitted fees pursuant to Subsection C. exceeds the amount to be refunded, the city council, after a public hearing, may determine that the uncommitted fees shall be allocated for some other purpose for which fees are collected and which serve or benefit the project for which the park impact fee was originally charged.

• (Ord. 27949.)

Sections:

• 14.25.400 Credit for private recreation improvements.

• 14.25.410 Credit for public park and recreation improvements.

• 14.25.420 Credit for school district property and public agency property.

• 14.25.430 Credit for stormwater detention facilities.

• 14.25.440 Credit for trail dedication.

• 14.25.450 Credit for public park and recreation improvements by community facilities or assessment districts.

• A. Where private open space or recreation improvements, or both, are provided in a proposed residential project including, but not limited to, an apartment complex, a partial credit shall be given against the requirement of this chapter as provided in this section.

• B. The amount of the credit and the improvements eligible for credit shall be determined pursuant to the schedule of fees and credits. The total credit shall not exceed fifty (50) percent of the requirement imposed under this chapter.

• C. Credit will be given only when the applicant has entered into an agreement with the city in which the applicant has agreed to construct the eligible private recreation improvements within a specified time period.

• D. No credits will be granted for improvements other than those specified in the schedule of fees and credits.

  • *Editor’s note— See the editor's note at Part 1.

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• E. Private recreation improvements shall be owned by the owner(s) of the parcel(s) on which they have been constructed.

• (Ord. 27949.)

• A. The applicant may enter into a parkland agreement, prior to issuance of the applicant's building permit(s), which obligates the applicant to make public park and recreation improvements to property dedicated by the applicant to the city or to either existing park facilities or recreational facilities in exchange for credit towards the applicant's obligations under this chapter. Credit may be granted up to the actual cost of the improvements in accordance with this section.

• B. In order for park facilities improvements and recreational facilities improvements to be eligible for credit, the director must find that the improvements are consistent with the city's construction standards, policies and practices and that it is in the best interest of the city to accept the improvements.

• (Ord. 27949.)

• A. Real property dedicated by the applicant for a new public school will be eligible for credit equal to its square footage if the following requirements are met:

  1. The real property dedicated to the school district would be available and open to the general public for recreational use during non-school hours; and

  2. The real property is improved with public park improvements in accordance with city's standards; and

  3. The school district grants an easement to the city in a form acceptable to the city attorney which restricts the improved school property for public park and recreational purposes.

• B. Credit for public agency property will be eligible for credit equal to its square footage if the following requirements are met:

  1. The public agency property is not available for public park or recreational purposes and meets the requirements for land dedication for park facilities purposes as specified in Section 14.25.320; and

  2. The public agency property is improved with public park improvements in accordance with city's standards; and

  3. The public agency grants an easement to city in a form, acceptable to the city attorney, which allows use of the property for public park and recreational purposes; and

  4. The public agency property is no more than fifty (50) percent of an improved park site dedicated to the city pursuant to this chapter.

• (Ord. 27949.)

• A. Real property that is dedicated by the applicant to the city for public park and recreational purposes which also serves as a storm water detention facility for the applicant's residential project will be eligible for credit against the requirements of this chapter as provided in this section.

• B. Credit may be granted if the storm water detention facility meets the following criteria:

  1. The stormwater detention facility meets applicable city requirements for management of peak stormwater runoff flow, volume and duration, and/or reduction of stormwater pollutant loading from applicant's residential project.

  2. The stormwater detention facility is a minimum of eight thousand (8,000) square feet of uninterrupted flat contiguous turf having a grade suitable for active recreational purposes, excluding the area for vegetated swales, infiltration ba-

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sins, or the intake area around the drain inlet of the stormwater detention facility, and the applicant demonstrates to the satisfaction of the director that the stormwater detention facility will be available for public park and recreational purposes for at least three hundred (300) calendar days per year.

3. The applicant has provided the city with the management and maintenance requirements for the stormwater detention facility demonstrating to the satisfaction of the director and the director of public works that the stormwater detention facility can be operated and maintained to manage peak stormwater runoff flow, volume and duration, and/or reduce stormwater pollutant loading during the full range of storm events for which it was designed.

4. The applicant has demonstrated to the satisfaction of the director and the director of public works that the stormwater detention facility can be maintained:

   • a. In accordance with applicable maintenance standards for stormwater detention facilities and city park maintenance standards; and

   • b. To conform to all applicable laws and regulations relating to stormwater detention facilities.

5. The applicant must also demonstrate to the satisfaction of the director that there is a funding mechanism in place that will provide for the ongoing maintenance needs of the stormwater detention facility as a stormwater detention facility and as a park facility.

• C. The total amount of credit for the dedication of a stormwater detention facility to the city shall be fifty (50) percent of the actual square footage of the stormwater detention facility that is used for eligible park and recreational purposes.

• D. Credit will be given only when the applicant has entered into an agreement with the city in which the applicant has agreed to construct the stormwater detention facility and eligible park and recreational improvements within a specified time period or phase of the project.

• E. Credit for stormwater detention facilities under this section is a pilot program and shall expire and be of no further force and effect as of February 10, 2008 unless council by further action amends or extends the pilot program.

• (Ord. 27949.)

• A. Real property dedicated by the applicant to city for a trail will be eligible for credit equal to the square footage of land to be dedicated if the following requirements are met:

  1. The real property to be dedicated meets the city's trail requirements; and

  2. The applicant dedicates the real property to city in accordance with the procedures specified in Section 14.25.330; and

  3. The real property to be dedicated shall be used for a trail that is identified in the city's general plan or in the city's master plan for parks and recreational facilities; and

  4. The real property to be dedicated is not less than twenty-four (24) feet wide; and

  5. The real property to be dedicated is not already dedicated for public park or recreational purposes.

• (Ord. 27949.)

The applicant may propose that a community facilities district or special assessment district be formed, pursuant to the provisions of this Code or applicable state law, in order to fund the construction or acquisition of park facilities and/or recreational facilities that will meet or exceed the requirements of this chapter. If the city agrees, and such a

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district is formed to fund the construction or acquisition of park facilities and/or recreational facilities that will meet or exceed the requirements of this chapter, the applicant's obligation under this chapter will be deemed satisfied.

(Ord. 27949.)

Residential care facilities for the elderly that meet the requirements set forth in this part shall be eligible to defer the obligation to pay park impact fees.

(Ord. 25619.)

Part 5

EXEMPTIONS*

Sections:

Low income units shall be subject to the requirements of this chapter, including the payment of the park impact fee established by resolution of the city council in the schedule of fees and credits. (Ords. 27949, 28804.)

Moderate Income Units shall be subject to the requirements of this Chapter, including the payment of the Park Impact Fee established by resolution of the City Council in the Schedule of Fees and Credits.

(Ord. 30541.)

Part 6

RESIDENTIAL CARE FACILITIES FOR THE ELDERLY

Sections:

*Editor’s note— See the editor's note at Part 1.

In order to be eligible for the deferment of payment of the park impact fee, a residential care facility for the elderly must meet the following requirements:

• A. One hundred percent of the residential units included in the residential care facility for the elderly must be covered by the license issued by the state of California to provide care to non-ambulatory elderly residents prior to occupancy of the first unit.

• B. The residential care facility for the elderly must provide the following care and have the following attributes:

  1. Assistance in dressing, grooming, bathing and other personal hygiene;

  2. Assistance with taking medication; 3. Central storing and distribution of medication;

  3. Arrangement of and assistance with medical and dental care, including transportation of residents to doctor or dentist appointments;

  4. Supervision of resident schedules and activities;

  5. Monitoring of food intake and special diets;

  6. Designed for residents who are physically incapable of travel outside the facility without personal assistance from the staff; and

  7. Residents receive transportation assistance from the facility on a limited basis for required activities such as medical appointments.

(Ord. 25619.)

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• A. The owner of the property on which the residential care facility for the elderly is to be constructed may enter into a written agreement with the city in order to defer the payment of the park impact fee until such time that the residential care facility for the elderly no longer meets the eligibility requirements of Section 14.25.610. The agreement shall be recorded in the Santa Clara county recorder's office.

• B. The deferred fees shall earn interest at the same rate earned by the city's portfolio.

• C. At the time that the residential care facility for the elderly ceases to meet the eligibility requirements set forth in Section 14.25.610, the owner of the property on which the residential care facility for the elderly is constructed shall be responsible for payment of the deferred fees including the interest earned on those fees during the deferment period.

• (Ord. 25619.)